Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Author: olls

  • U.S. Supreme Court Extends First Amendment Rights While Limiting Colorado Law on Stalking

    by Alana Rosen

    Counterman v. Colorado, 600 U.S. 66 (2023).

    On June 27, 2023, the U.S. Supreme Court issued a decision on Counterman v. Colorado, a case focused on a Colorado stalking law that prohibits repeated communications that would cause a reasonable person to suffer serious emotional distress and that do, in fact, cause a person to suffer emotional stress.[1] The U.S. Supreme Court overturned a Colorado man’s conviction for stalking a local musician, saying the state did not sufficiently establish the defendant’s actions as a “true threat” to the victim. 

    In this case, from 2014 to 2016, Billy Counterman sent hundreds of Facebook messages to C.W., a Colorado musician. The two had never met and C.W. never responded to Counterman’s messages. C.W. tried to block Counterman but he created a new Facebook account each time and continued contacting C.W. Some of Counterman’s messages contemplated violent harm befalling C.W., which put her in a constant state of fear and anxiety, affecting her day-to-day life. C.W. stopped walking alone and attending social engagements. She also canceled music performances, causing financial strain. Eventually, C.W. contacted law enforcement. In 2016, Counterman was arrested and charged with one count of stalking (credible threat), one count of stalking (serious emotional distress), and one count of harassment.

    Counterman moved to dismiss the charges on First Amendment grounds, arguing that his messages were not “true threats” pursuant to section 18-3-602 (1)(c), C.R.S. The trial court decided, however, Counterman’s statements did rise to the level of a “true threat” and ruled that the First Amendment posed no bar to prosecution. The trial court sent the case to a jury, which found Counterman guilty and sentenced him to four-and-a-half years in prison. On appeal, the Colorado Court of Appeals affirmed the conviction. The Colorado Supreme Court subsequently declined to review the case.

    The U.S. Supreme Court decided to hear the case because courts have been divided on whether the First Amendment requires proof of a defendant’s mindset in “true threat” cases. This is known as a “mens rea“ standard.[2] 

    In a 7-2 decision, Justice Kagan authored the majority opinion. She stated that while the First Amendment protects freedom of speech, there are a few limited, “historic and traditional categories” of speech—incitement, defamation, and obscenity—that are not protected.[3] “‘True threats’ of violence” Justice Kagan stated, are “serious expression[s] conveying that a speaker means ‘to commit an act of unlawful violence.’” The Court noted that in previous cases, the Court has stated that the existence of a threat depends on the recipient’s perception and not the speaker’s intent.

    The Court acknowledged that the First Amendment may still demand a true threat to be subject to a subjective mental-state requirement that may shield some true threats from liability. In her concurrence, Justice Sotomayor stated that society’s discourse occurs more frequently on the Internet, specifically on social media. The rapid changes to communication and information transmission has changed what society accepts as acceptable behavior. Justice Sotomayor went on to say that online communication can lack context clues, such as who is speaking, the tone of voice, and expression. She noted that without sufficient protection for unintentionally threatening speech, comments made in the heat of the moment online could lead to criminal prosecution.

    Justice Kagan noted the reason the First Amendment may demand a subjective mental state requirement relates to what is known as a “chilling effect on speech.” The Court further reasoned that a prohibition on speech may result in self-censorship of speech. One tool to prevent that outcome is to require the State to establish that a defendant acted with a culpable mental state. The Court recognized that this requirement comes at the cost of shielding threatening speech when the State cannot prove what a defendant thought. However, doing so reduces the prospect of chilling fully protected expression. The Court recognized that even though a culpable mental state may lessen the chill of protected speech, it makes prosecution of certain types of communications harder. To balance these two concerns, the Court considered the appropriate mens rea standard to apply.

    The Court held that among mens rea standards, a determination of recklessness offers a suitable standard. Recklessness is morally culpable conduct involving a “deliberate decision to endanger another.” The Court stated that in a “true threat,” a speaker is aware that others could regard their statements as threatening violence and but delivers the statements anyway.

    The Court held that in Counterman’s case, the Colorado district court failed to consider Counterman’s understanding of his statements as threatening, and in doing so violated Counterman’s First Amendment rights. The Court therefore vacated the judgment of the Colorado Court of Appeals and remanded the case back to the Colorado district court for further proceedings consistent with the Court’s opinion.

    [1] Section 18-3-602 (1)(c), C.R.S.

    [2] Mens rea is the state of mind statutorily required to convict a defendant of a particular crime.

    [3] Justice Kagan was joined by Chief Justice Roberts, and Justices Alito, Kavanaugh, Jackson, Sotomayor, and Gorsuch. Justice Sotomayor and Justice Gorsuch concurred in part and concurred in the judgement. Justices Thomas and Barrett dissented.

  • There Are Only 10 Ways to Write a Sentence

    by Frank Stoner

    Despite the fact that there are only 10 ways to write a sentence, there remain infinitely many possible sentence constructions. English, like German, Mandarin, and Russian, is what linguists call an SVO language. That is to say, English writers will typically first tell you the [S]ubject, then the [V]erb, and then the [O]bject.

    For example:

                                            She          loves          him.

                                            Subject    Verb          Object   

    In what linguists call SOV languages, like Japanese or Latin, a writer will first tell you the [S]ubject, then the [O]bject, and then, finally, the [V]erb. An equivalent Latin sentence rendered in English would look like this:

                                            She          him          loves.

                                            Subject    Object     Verb

    Almost 90% of the world’s 6,000 or so languages use one of these two sentence structures.

    This very basic architecture seems to suggest that each language has only one sentence structure and that all natural languages (that is to say, natural human languages; not codes or computer languages) only ever include subjects, verbs, and objects, just in different orders. So, you might be wondering, Why does the title say there are 10 ways to write a sentence?

    Although it is true that English only uses the SVO sentence structure, there are 10 sentence patterns that employ the structure in different ways—mainly dealing with the “V” and “O” parts: the verbs and the objects.1 Among those different ways are four categories of things a sentence can do. These categories are organized below according to the traditional Reed-Kellogg model, which—in theory—places the sentence patterns in ascending of order of verb complexity.2

    Category A. A sentence can tell us what something is.

    This category, often called the “be patterns,” always includes some form of the verb “to be” (am, are, is, was, were, etc.) as its “predicating” or main verb. This category of sentence patterns is perhaps the most frequently used set in legal writing because its patterns always tell us something about the constitution of the subject. There are three patterns:

              (I). The chambers are upstairs. (upstairs gives us information of time or place about the subject).

              (II). The members are diligent. (diligent describes the subject).

              (III). Senator Smith is my representative. (my representative renames or defines the subject).

    Category B. A sentence can tell us what something is like.

    This category, often called the “linking verb patterns,” tells us something about the subject with any verb except a “be-verb.” There are two patterns:

              (IV). The members seem busy. (seem busy tells us information about the members without defining them).

              (V). The members remained citizens. (remained “links” the object citizens to the subject members without defining them with a “be-verb”).

    Category C. A sentence can tell us what something does.

    This category consists of only one pattern—an intransitive sentence. An intransitive sentence is, essentially, just the SV part of the larger SVO structure—in other words, no object follows the verb.

              (VI). The General Assembly adjourned. (nothing follows the verb adjourned).

    Category D. A sentence can tell us what something does to something else.

    This category consists of the four transitive patterns, and is perhaps the second-most commonly used structure in legal writing—though it is perhaps the most common structure in everyday speech.

              (VII). The legislature passed the bill. (the bill here is what linguists call a direct object, since it is the “thing” acted upon by the subject).

              (VIII). The editor gave the clerk the amendment. (the clerk here is what linguists call an indirect object since it is involved indirectly with the main object being acted upon: the amendment).

              (IX). The members consider the chairperson intelligent. (intelligent describes the indirect object chairperson without renaming or defining it).

              (X). The members elected Senator Smith chairperson. (chairperson renames or defines the indirect object Senator Smith).

    You may have a suspicion that these 10 patterns don’t cover quite everything that English speakers can write. What about adverbs, you might ask? First of all, words or phrases that “fancy up” a sentence are not considered vital to a sentence’s structure because the SVO structure can function without such niceties. Adverbs, for instance, can be moved anywhere within a sentence and therefore do not constitute any additional patterns:

              Quickly, they ran up to the chamber.

              They ran quickly up to the chamber.

              They ran up to the chamber quickly.

    Prepositional phrases like up to the chamber and other kinds of phrases that serve to “fancy up” a sentence are also not considered essential to a sentence’s function. While those kinds of phrases may carry essential meaning, they do not perform an essential function of an SVO sentence. For that reason, they do not constitute any patterns additional to the 10 listed above in Roman numerals.

    The final, and perhaps most important thing that allows English speakers to do so much with just 10 basic sentence patterns is what linguists call “recursion.” Using a process called nominalization (you can think of this as meaning “nounify”), speakers can take any of the 10 patterns and embed them in any place a noun (that is, a subject, object, indirect object, or direct object) normally belongs. Consider the following:

              Witches          are          scary.

              Subject          Verb        Object

              (Pattern II sentence)

              ________________________

              Dorothy          thinks       witches are scary.

              Subject           Verb                  Object

              (Pattern II sentence embedded in a pattern VII sentence)

    Here, the full sentence “Witches are scary” can be nominalized into a single object and embedded as a chunk within another complete sentence: “Dorothy thinks witches are scary.” This remarkable feature of both the human mind and language allows any of the 10 sentence patterns to be combined, reshaped, planted, or otherwise embedded within any other sentence. Given the 170,000 or so words English has within its lexicon, 10 patterns—and the ability to use them recursively—really are enough to say infinitely many things.

    1. These are the 10 sentence patterns according to the Reed-Kellogg model, discussed in Martha Kolln’s and Robert Funk’s “Understanding English Grammar” (Longman, 2012).

    2. The Reed Kellogg model, a 19th century creation, has largely fallen out of favor with  contemporary linguists, but the model is still taught by English instructors who believe pictorial sentence diagrams are valuable to help students visualize sentence structure.

  • Citizen Initiative Process Allows Coloradans to Go Nuclear, or Not

    by Jessica Chapman

    The 700,000 or so Coloradans who went to the polls on November 5, 1974, voted “yes” to all 10 constitutional ballot measures before them. Citizens voted soundly in favor of reinstating the death penalty (which the U.S. Supreme Court had outlawed two years earlier) in certain cases. They voted by an even greater margin to prohibit busing students to schools that were farther away from the closest schools. “School bussing,” as it was known at the time, was a policy designed to desegregate schools when the school’s neighborhoods were still de facto segregated. (Notwithstanding the vote, Denver continued school busing pursuant to a 1973 lawsuit.)

    By a thinner yet still decisive margin, Coloradans also voted in favor of an initiative brought by environmental groups to prohibit nuclear detonations in the state unless approved by a vote of the people.

    The ballot language voters considered read:

    “An act to amend the Constitution of the State of Colorado to establish procedural steps to be complied with prior to the detonation of nuclear explosives devices, requiring prior approval of the detonation by the voters through the enactment of an initiated or referred measure.”

    The measure passed, with 58 percent (399,818) voting “yes” and 42 percent (291,284) voting “no,” and resulted in the addition of Article XXVI to the state constitution.

    What led to this point? How, exactly, did the question of whether or not to permit nuclear testing end up reaching Colorado voters?

    The 1970s marked a time in the state and nation as a whole when Americans were paying more attention to environmental issues. At the federal level, under the administration of President Richard Nixon, the decade ushered in the Environmental Protection Agency, the Endangered Species Act, the National Environmental Policy Act, and the Legacy of Parks program, among others. The first Earth Day was celebrated April 22, 1970.

    In Colorado, nuclear energy had become an environmental issue to rally around for a couple reasons. A fire at the Rocky Flats nuclear weapons production facility, eight miles south of Boulder, in 1969 led to a multi-year clean-up and concerns about soil, air, and water contamination.

    Meanwhile, the federal Project Plowshare program, which was launched in the 1950s to pursue “peacetime” uses for nuclear energy, had located two sites on Colorado’s Western Slope to test the capability of nuclear weapons to extract natural gas from underground rock. The first, called Project Rulison, involved the detonation of a nuclear device in Garfield County in 1969. The other, called Project Rio Blanco, involved three devices and took place in May 1973, less than a year and a half prior to the November 1974 vote.

    Neither Project Rulison nor Project Rio Blanco produced suitable natural gas, and in fact, radiation was detected in the air after the Project Rulison detonation. Such unintended consequences alongside mounting public health concerns about nuclear power built momentum around the issue. (Project Plowshare terminated in 1977.)

    Site of underground nuclear testing in Rulison, Colo. in 1969. Denver Public Library Special Collections

    Given these elements, the passage of a nuclear ban like Measure 10 seems perhaps unsurprising.

    Dr. Derek Everett, a professor of history at Colorado State University explains that, “[T]he nuclear explosion ban in the state constitution emerged at a time when many Coloradans were thinking twice about the environmental impact of development after World War II. Pushback against Rocky Flats, the Rocky Mountain Arsenal, the 1976 Winter Olympics, and other controversies reflected an increasing environmental awareness alongside the nuke ban in 1974.”

    Then, as now, citizen groups, or “proponents,” have the option of pursuing placement of issues before voters via the citizen initiative process.

    Measure 10, before it became enshrined as Article XXVI of the state constitution, was guided to passage by activists, chief among them a student group called People for Rational Energy Sources. The group gathered enough signatures—50,000+ in this case—to place the ballot language cited above in front of voters on that day in 1974, while also working to promote public awareness of and support for the issue through writing letters, organizing events and otherwise direct attention to the issue.

    The citizen initiative is an interesting feature of our state’s constitution—shared by just 25 states other than Colorado—permitting citizens (any citizen) to propose new state laws or constitutional amendments. The mechanics of the process are somewhat complex.

    In a 2018 LegiSource article, Office of Legislative Legal Services Director Ed DeCecco provides a useful two-part overview of the initiative process. He explains how proponents of a measure must proceed through a number of steps, including “review and comment,” setting the ballot title, gathering signatures, verification of signatures, and setting language for the Blue Book – all before any issue may be placed on the ballot. The process involves the Legislative Council and the Secretary of State’s office as well as this office. In the decades since Measure 10’s passage, while the General Assembly has introduced bills addressing the feasibility of nuclear energy, the issue has remained more or less untouched and Amendment XXVI has remained intact since its enactment. In fact, despite the widespread use of nuclear power in certain parts of the world, including the United States, Colorado has only ever had one nuclear facility, the Ft. St. Vrain Nuclear Power Plant, which operated from 1979 to 1989.

    The General Assembly has made efforts to modify aspects of the citizen initiative process over the years. The language in Article V, Section 1, however, stands: “… the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.” And the people of the state continue to be asked to approve or deny initiatives, but the people still haven’t gone nuclear.

  • Great Outdoors Colorado: Protecting Colorado’s Natural Playground

    by Faith Marcovecchio

    State lotteries fund all kinds of valuable things, from education to veterans’ services, Special Olympics to small businesses. But of the 45 states that sponsor lotteries, only six have created programs that use the proceeds to protect beautiful landscapes for everyone to enjoy. With Colorado’s stunning natural and recreational offerings, it’s no surprise our state is one of them.

    A 1992 ballot initiative amended the Colorado Constitution to create Great Outdoors Colorado (GOCO) and its associated trust to improve outdoor access and recreational opportunities, protect and restore the state’s land and rivers, and offer educational programs and internships. GOCO is funded entirely by a portion of the proceeds from the state lottery. When Amendment 8 proposing GOCO was passed by the voters in 1992, Colorado joined Minnesota and Arizona in setting aside lottery profits to conserve and protect state land. Since that time, Oregon, Maine, and Nebraska have adopted similar programs and trusts to protect their own outdoor heritage.

    The results in Colorado are astounding. In the 31 years since GOCO was established, over 5,500 projects have been completed in all 64 of the state’s counties, conserving 1.2 million acres and creating or improving just shy of 1,800 parks. To accomplish this, GOCO’s board, which includes two members from each congressional district in the state, partners with nonprofits, local governments, and Colorado Parks and Wildlife on a wide array of projects funded through the GOCO trust and matching grants.

    Doubtless, you’ve heard of some of them. The new Fishers Peak State Park near Trinidad was purchased with funding from GOCO in partnership with The Trust for Public Land, The Nature Conservancy, Colorado Parks and Wildlife, and the City of Trinidad. Greenland Ranch, the beautiful swath of open space you enjoy as you drive between Denver and Colorado Springs, was also funded by the lottery, this time with additional financial backing from private funders and Douglas County, in partnership with The Conservation Fund.

    On the Western Slope, GOCO, working with Colorado Parks and Wildlife, recently completed the Palisade Plunge, 32 miles of varied single-track trail that challenges mountain bikers as they ride from the top of Grand Mesa to the desert floor below. And on the Eastern Plains, rodeo lovers in Kim, Colorado, throng to events at the new Mustang Pavilion, made possible by GOCO, the Gates Family Foundation, the El Pomar Foundation, and community support.

    These are some of the marquee projects GOCO is known for, but the lottery also funds hundreds of smaller projects that quietly enhance and maintain beautiful spaces and recreational venues across our state, whether by removing noxious weeds in Crested Butte, improving the baseball fields and playgrounds in Washington County, or connecting bike trails in Louisville. GOCO has had a hand in them all.

    When voters passed Amendment 8 and added article XXVII to the state constitution in 1992, it was an important constitutional addition, but it wasn’t a stand-alone amendment. Article XXVII can only work in concert with article XVIII, section 7, which allows for a state-supervised lottery. In 1982, a state lottery division within the Department of Revenue was created in statute, but the division must be reauthorized continuously by bill. The most recent reauthorization happened in 2018, when Senate Bill 18-066 extended the division’s termination from 2024 until 2049. Though it’s unlikely the General Assembly would abolish our state lottery, by continuing it, the legislature also supports outdoor recreation in every county and corner of the state. For the next 25 years, that support will continue, and millions of Coloradans and visitors to our jewel of a state will benefit as a result.

    Colorado, play on!

  • A Brief Timeline of Colorado Gaming Law

    by Richard Sweetman

    Colorado’s laws concerning gambling, or gaming, were, until recently, unique among the states. However, the tight and unusual restrictions that were associated with Colorado’s embrace of “limited gaming” in 1990 have now disappeared. Legally, our state now looks more like other states that have embraced for-profit gambling over the last 30 years. What happened? Well, here is a quick summary of the evolution of gaming law in Colorado!

    The Wild West: Gambling is a popular pastime in late-nineteenth-century Colorado. In frontier towns and mining communities, the absence of law enforcement allows gambling to flourish in saloons and brothels. In Denver, during Colorado’s silver boom, the legendary con man Jefferson Randolph “Soapy” Smith II operates gaming halls and rigged games that target successful silver miners and their newfound wealth.

    The silver boom eventually dies out and the miners move on, but migrant workers and families continue arriving to populate the new state of Colorado. As conservative values begin to prevail and local, state, and federal law enforcement agencies are established in the West, gambling is forced out of public spaces.

    1948: Colorado voters approve a legislatively referred measure called the Colorado Gambling on Horse and Animal Races Amendment. The new law allows betting on horse races and greyhound races and creates the Colorado Racing Commission. In 1949, live horse racing and greyhound racing begin in Colorado.

    1958: Through another ballot measure, Colorado voters amend the state constitution to allow charitable gaming, including bingo and raffles, beginning in 1959.

    1982:  The Colorado General Assembly creates the Colorado Lottery and the Lottery Division of the Colorado Department of Revenue. In 1983, the Colorado Lottery begins selling tickets.

    1990: Voters overwhelmingly (57.3% to 42.7%) pass Amendment 4, a citizen-initiated measure called the Legalization of Limited Gambling Initiative that legalizes “limited gaming” only in the mountain towns of Black Hawk, Central City, and Cripple Creek. In 1991, the initiative becomes law and casinos begin operations. Individual bets can be no more than $5, casinos’ hours of operation are limited to 8 a.m. to 2 a.m., and roulette and craps are not allowed.

    2000: Colorado voters enact Referendum E, a legislatively referred measure that allows the state lottery to begin offering tickets to multistate jackpot drawings such as Powerball and Mega Millions.

    2008: Through yet another citizens’ initiative (Amendment 50), Colorado voters amend the state constitution to increase the maximum individual bet amount from $5 to $100, allow casinos to operate 24/7, and allow casinos to offer roulette and craps games.

    2014: The Colorado General Assembly enacts House Bill 14-1146, which prohibits greyhound racing in Colorado.

    2019: Voters narrowly (51.4% to 48.6%) approve Proposition DD, which legalizes sports betting in Colorado.  In May 2020, in the midst of the COVID-19 pandemic and associated lockdowns, sports betting – including online sports betting – launches in Colorado. The operations of new sports books in Black Hawk, Central City, and Cripple Creek casinos are initially limited by the situation. But TV and radio advertisements for online sports betting websites suddenly become ubiquitous in Colorado media.

    2020: Colorado voters overwhelmingly (60.5% to 39.5%) embrace Amendment 77, which essentially removes any limits on the size of bets and the types of games allowed in Colorado casinos.

    2023: The Colorado General Assembly enacts House Bill 23-1041, which prohibits wagering on greyhound races that are conducted on out-of-state tracks and simulcast in Colorado.

  • Looking Back to Move Forward: The Colorado Supreme Court Explains the State Constitution’s Retrospectivity Clause.

    by Conrad Imel

    Often the General Assembly passes bills to regulate future conduct, but sometimes a legislator wants to expressly address something that happened in the past. The Colorado Constitution limits the General Assembly’s power to enact legislation that applies retroactively, so we at LegiSource are here to help make sense of these limits on the General Assembly’s authority.

    The General Assembly has broad plenary authority to enact legislation, but that power is limited by state and federal constitutional provisions. One such provision is the Colorado Constitution’s retrospectivity clause. Article II, section 11 of the Colorado Constitution states:

    No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly. (emphasis added)

    Recently, in Aurora Public Schools v. A.S., the Colorado Supreme Court had occasion to outline the contours of this retrospectivity clause. Aurora Public Schools involved a challenge to the constitutionality of Senate Bill 21-088. That bill created a new statutory cause of action for victims of sexual misconduct that occurred while the victim was a minor. Like most laws, S.B. 21-088 applies prospectively, to conduct that occurs after the bill’s effective date. However, S.B. 21-088 also expressly applies retroactively. The bill created a three-year “look back” window for victims of misconduct that occurred between January 1, 1960, and January 1, 2022 (the bill’s effective date). The look-back provision allowed victims of past misconduct to bring a claim during the three-year period between January 1, 2022, and January 1, 2025. The plaintiffs in Aurora Public Schools brought a claim pursuant to the look-back provision; the defendants moved to dismiss the case, claiming that the look-back window was unconstitutionally retrospective.

    The Court in Aurora Public Schools began by explaining the retrospectivity clause and reaffirming its prior retrospectivity jurisprudence. The Court explained that the purpose of the retrospectivity clause is to prevent unfairness that would otherwise result from “changing the consequences of an act after that act has occurred. [. . .] In other words, the prohibition on retrospective legislation prevents the legislature from changing the rules after the fact because to do so would be unjust.”

    But not all retroactive legislation is unconstitutionally retrospective. To determine whether a retroactive law is unconstitutionally retrospective, Colorado courts use the “Story test,”[1]  which says that a law violates article II, section 11’s prohibition if it (1) impairs a vested right; or (2) creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.  While these two prongs arguably overlap, a law that satisfies either prong is unconstitutionally retrospective. The focus of the test is on substantive laws. Laws that are merely procedural or remedial may apply retroactively without offending the constitution.

    The plaintiffs in Aurora Public Schools argued that there is a public policy exception to the prohibition on retrospective legislation, but the Court disagreed, holding that there is no public policy exception to the retrospectivity clause.

    Ultimately, the Court held that S.B. 21-088’s look-back window is unconstitutional in violation of the retrospectivity clause to the extent that it permits a victim to bring a claim for past sexual misconduct for which previously available causes of action were barred by the statute of limitations. The court found that the bill created a new right for relief for the plaintiffs, which in turn created a new obligation and disability with respect to past transactions for the defendants, in violation of the retrospectivity clause. Further, the court affirmed past precedent that the retrospectivity clause prohibits reviving claims that are time-barred by the statute of limitations and found that the three-year look-back window to bring a new cause of action for past conduct indirectly accomplishes the same ends as reviving a claim that is time-barred.

    So what does the Court’s opinion in Aurora Public Schools mean for the General Assembly? First, the Court made clear that Colorado courts will use the “Story test” to determine the constitutionality of a law that applies retroactively and that there is no public policy exception to the retrospectivity clause. Second, the Court explained that the retrospectivity clause prohibits the legislature from doing something indirectly which it could not do directly, so the retrospectivity analysis applies to any law that applies retroactively.

    The constitution does not completely prohibit the General Assembly from enacting laws that apply to conduct that occurred prior to the law going into effect, but it does prohibit laws that impair a vested right or create a new obligation, impose a new duty, or attach a new disability to past conduct. If a member wants to sponsor a bill that applies retroactively, the bill drafter can help walk the sponsor through any constitutional concerns.

    To read more about the Colorado constitution’s ex post facto clause (i.e., section 11 of article II), see https://legisource.net/2014/09/25/ex-post-facto-laws-effective-dates-and-legislative-time-travel/ .

    [1] The “Story test” is named for United States Supreme Court Justice Joseph Story, who first articulated the test in Society for the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (C.C.D.N.H. 1814).

  • Canons of Statutory Construction

    by Jessica Herrera

    Is the drafter in the room? We have a statutory interpretation question about a series of words.

    In a perfect world, all statutes would have a plain and straightforward meaning. Unfortunately, there are times when there is ambiguity in the words or phrases of a statute, and courts will rely on various methods of statutory interpretation. One way courts discern what a statute means is by using canons of statutory construction. These canons of statutory construction are interpretive principles that drafters in the Office of Legislative Legal Services often consider when drafting bills. Although these canons of statutory construction are not absolute, and may at times even conflict with one another, they are nevertheless a tool in your favorite drafter’s tool box.

    Canons of Statutory Constructions Regarding a List or Series of Words

    Expressio Unius est Exclusio Alterius

    Starting off with the most common sense canon of statutory construction, the doctrine of expressio unius est exclusio alterius comes from the Latin phrase that means “the express mention of one person or thing excludes others.” This canon boils down to the presumption that specified enumerations in a statute restrict the meaning to just those expressly listed. To illustrate, a statute that prohibits an individual from intentionally “hitting, kicking, or stomping” on a dog would exclude the prohibition of other harmful acts, such as strangling a dog, even if the legislative intent is obviously to prevent actions of a similar nature. Would adding a broader, catch-all clause at the end help prevent other harmful acts to dogs? It depends. The next canon of statutory construction sheds some light on having a catch-all clause at the end of a sentence.

    Ejusdem Generis

    Ejusdem Generis is a canon of statutory construction that comes from the Latin phrase that means “of the same kind.” Ejusdem Generis is the doctrine that states where there is a list or a series that specifies a number of specific people or things, and the list is immediately followed by more general words or a phrase, the general words or phrase is construed as being limited in scope and applies only to people or things of the same kind or class as those expressly mentioned with particularity. For example, if a law refers to automobiles, trucks, tractors, motorcycles, and other motor-power vehicles, a court applying the principle of ejusdem generis to the general phase of “motor-power vehicles” would likely exclude a boat or airplane because the specified list was limited to land-based vehicles.[1] In essence, it is worthwhile to pay attention to a common theme in an enumerated list, as a court may limit the scope of a catch-all phrase to a specific characteristic. See more about Ejusdem Generis here.

    The Last Antecedent Rule and the Series Qualifier Battle

    As we all recall from primary school, an antecedent is a word that is replaced by another word in the course of a sentence. The most common occurrence is when an antecedent is replaced by a pronoun. For example in the sentence, “Rose is very smart, she would make a great public official!” “Rose” is the antecedent to the pronoun “she.” Now that we all remember what an antecedent is, let’s extrapolate the concept of an antecedent to the canon of statutory construction known as the last antecedent.

    Under the last antecedent rule, when a series is followed by words of limitation, the limitation will apply only to the last antecedent on the list. For instance, a statute may provide, “Licensees may hunt deer, moose, and fish that are not on the endangered species list.” The restriction “that are not on the endangered species list” will apply only to fish, which is the last antecedent on the list. The last anteceding rule applies to qualifiers that follow a list.

    If a qualifier precedes a list, the series qualifier cannon applies. For instance, a statute may provide “Licenses may hunt blue deer, moose, and fish.” Under the series qualifier canon, the qualifier blue applies to fish as well as to deer and moose.

    If the last antecedent rule appears familiar to you, that may be due to your diligent reading on construction of statutes found in part 2 of article 4 of title 2, C.R.S. Specifically, section 2-4-214,C.R.S., states that the last antecedent rule has not been adopted by the general assembly. That means the modifier is not presumed to apply to just the last item on the list. Although the last antecedent rule may have had its last hurrah in Colorado, it is still used in other states and notably in the recent United States Supreme Court case Lockhart v. United States. [2]

    The court in Lockhart interpreted the federal law that set forth a mandatory minimum sentencing for an individual who violated federal law regarding possession of child pornography and also had a prior conviction under “…the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward…” The question at issue in Lockhart was whether the qualifier “involving a minor or ward” applied only to the last antecedent, “abusive sexual conduct,” or whether it also applied to the whole series and thus included both “aggravated sexual abuse” and “sexual abuse.” If the qualifier “involving a minor or ward” applied to the entire series, the defendant’s prior conviction of sexual abuse did not subject him to federal statute’s mandatory minimum sentencing because the victim was not a minor or ward. The Supreme Court held that the qualifier applied only to the last antecedent and not the whole series, and thus Lockhart’s prior conviction of sexual abuse perpetrated upon an adult elevated his minimum sentencing.

    These canons of statutory construction can play a role in determining whether something on a list or series is included or excluded and used as a tool to decipher the legislature’s intent. Sometimes making a list or series in statute is not as straightforward as one would think. Given the potential ambiguity and unintended legislative intent that may be implied from a series with a modifier, it might be best to forgo including a modifier all together and instead opt to flesh out each item on a list independently as suggested here.

    [1] McBoyle v. United States, 283 U.S. 25 (1931)

    [2] Lockhart v. United States, 577 U.S. 347 (2016)

  • A Holiday Message

    Happy New Year!

    We wish you a happy and healthy 2024.

  • 2023 Interim Committee Recap – Part 3

    This is the final part in a series of three articles summarizing this year’s interim committee actions. As previously mentioned, we’re providing summaries of four of 12 committees and their recommended legislation. Here are links to Part 1 and Part 2 of the series. The Legislative Council met on Wednesday, November 15, to review interim committee legislation proposals. Click here to listen to the Legislative Council meeting.

    Sales and Use Task Simplification Task Force

    The task force met four times during the interim. It heard presentations from the Department of Revenue, the Colorado Municipal League, local government representatives, and private industry stakeholders. The meetings included public testimony and discussions relating to the electronic Sales and Use Tax System (SUTS), the need for accurate and up-to-date information from local taxing jurisdictions, thresholds for filing sales and use tax returns, participation by home rule municipalities, and local lodging taxes. The task force requested and recommended five bills to the Legislative Council as follows:

    • Bill A – Streamlining Filing of Sales and Use Tax Returns. The bill increases the monthly tax collected threshold at which taxpayers are permitted to make returns and pay taxes at quarterly intervals. It sets thresholds, effective on and after January 1, 2025, for self-collecting home rule municipalities that do not use SUTS allowing taxpayers to make returns and pay sales and uses taxes at certain intervals. It requires all local taxing jurisdictions, including all home rule municipalities, to begin using SUTS by July 1, 2025, and precludes any non-compliant jurisdiction from participating in the streamlined process for collecting sales and use taxes from certain retailers.
    • Bill B – Hold Harmless for Error in GIS Database Data. The Department of Revenue maintains a Geographic Information Systems database for vendors to use to determine the jurisdictions to which tax is owed and to calculate appropriate sales and use tax rates. The bill provides that a vendor that relies on the database to determine the local taxing jurisdictions to which tax is owed is held harmless in an audit by a local taxing jurisdiction for any underpayment of tax, charge, or fee liability that results solely from an error or omission in the database.
    • Bill C – Simplify Processes Regarding Certain Local Government Taxes. The bill requires local taxing jurisdictions that impose a local lodging tax or a sales or use tax on building or construction materials and integrates such sales or use tax into building permits to file certain information with the executive director of the department and for the executive director to publish the information. It modifies the scope of the task force’s charge to include simplification of local lodging tax systems and requires certain action during the 2024 interim by the task force related thereto. 
    • Bill D – Uniform Definition and Reporting for Local Lodging Tax.The bill requires local taxing jurisdictions, including any home rule municipalities, to apply the same standards to an accommodation intermediary as those applied to a marketplace facilitator that is obligated to collect and remit a local lodging tax. It prohibits local taxing jurisdictions from imposing additional information reporting requirements on accommodation intermediaries.
    • Bill E – Update of Local Government Sales and Use Tax Collection.The bill revises, modernizes, and harmonizes the separate statutes that govern the state administration of local sales or use tax by creating new parts 2 and 3 in article 2 of title 29. It makes various changes to the collection, administration, enforcement, and distribution of a statutory local government, special district, or requesting home rule jurisdiction sales or use taxes that are administered by the Department of Revenue and establishes a dispute resolution process when the local sales or use tax that is administered, collected, and enforced by the department is paid erroneously to the state or to the wrong locality.

    Transportation Legislation Review Committee

    The committee met three times and heard presentations from the Public Utilities Commission, Division of Motor Vehicles, Department of Public Safety, towing and recovery industry, Colorado Organization for Victim Assistance, Sierra Club, Department of Transportation, railroad industry, transportation industry labor unions, the Regional Transportation District, Denver Regional Council of Governments, Freight Panel Advisory Committee, Bicycle Colorado and the American Automobile Association of Colorado, Colorado Municipal League, the Greeley Evans Transit, the Colorado Association of Transit Agencies, the Southwest Energy Efficiency Project, the Public Highway Authorities, and the Colorado Energy Office. The committee recommended the following five bills to the Legislative Council for consideration:

    • Bill A – Vulnerable Road Users Protection Enterprise. The bill creates the vulnerable road user protection enterprise in the Department of Transportation for the purpose of providing funding for transportation system infrastructure improvements identified by the department that reduce the number of collisions with motor vehicles resulting in death or serious injury to vulnerable road users. The enterprise is required to impose the fee and the fee revenue is credited to a newly created fund and continuously appropriated to the enterprise, which is authorized to provide grants to fund eligible projects.
    • Bill B – Child Passenger Safety and Education. The bill creates the child passenger safety education and distribution grant program within the Department of Transportation. The department is required to create rules specifying elements of the grant program. The bill changes existing law regarding the age and weight requirements of children required to use child restraint systems and additional requirements for the restraint of older children.
    • Bill C – Railroad Safety Requirements. The bill imposes safety requirements on railroads operating trains in the state, including maximum train lengths. That, with certain exceptions, railroads must operate, maintain, and report the location of wayside detector systems that monitor passing trains for defects. Trains may not obstruct a public crossing for longer than 10 minutes unless continuously moving or prevented from moving by circumstances beyond its control. Any train crew member may report to a designated union representative a safety violation, injury, or death that occurred during the operation of a train and union representatives may enter a railroad’s place of operation to investigate that report. The Public Utilities Commission may impose fines for the violation of these safety requirements or for denying a union representative’s access and the bill creates the front range passenger rail district maintenance and safety fund, which consists of money collected as fines imposed by the commission. Requires railroads that transport hazardous material in Colorado to maintain insurance coverage to cover costs and liabilities resulting from accidents.
    • Bill D – Towing Carrier Regulation. The bill requires a tow truck driver to undergo a fingerprint-based criminal history record check. If the check produces a criminal history that the Public Utilities Commission determines is inappropriate for tow truck driver, the driver will not be permitted to drive the tow truck. The bill prohibits members of the Towing Task Force in the Department of Regulatory Agencies from voting on matters that will financially benefit them or if they are the subject of a complaint about which the task force is advising the commission. Requires the commission to promulgate a rule to require towing carriers to provide any information needed for its annual report to the General Assembly. A towing carrier is forbidden from patrolling or monitoring property to enforce parking restrictions on behalf of the property owner. Requires certain property owners to pay for the removal of the vehicle from their property and for any storage for the first 30 days. The towing carrier is required to notify the vehicle owner that the vehicle owner can retrieve the vehicle free of charge for the first 30 days. If a motor vehicle is nonconsensually towed in violation of state statute, the towing carrier must, within 48 hours after the determination of a statutory violation, return the vehicle to the place it was towed from.
    • Bill E – Methods to Increase the Use of Transit. The bill creates new programs and modifies an existing program with the goal of reducing ozone emissions through the increased use of transit. Creates the statewide transit pass exploratory committee within the Department of Transportation to produce a proposal for the creation, implementation, and administration of a statewide transit pass. Modifies the ozone season transit grant program by relocating the program to the department, creates certain stipulations regarding the disbursement of funds, and makes the program permanent. Creates the youth fare free transit grant program to provide grants to provide free year-round transit services for individuals who are 19 years of age or younger and specifies procedures and reporting requirements for receiving grant money. For income tax years beginning on or after January 1, 2024, but before January 1, 2029, the bill creates an income tax credit on the purchase of one or more transit passes for use by the taxpayer during that income tax year and the requirements for claiming the credit.

    Water Resources and Agriculture Review Committee

    The committee, which is actually a year-round committee, met four times during the interim and heard presentations concerning the Colorado River drought, pesticide regulation, impacts of conservation on water rights, reintroduction of gray wolves, tribal nations’ water rights, artificial turf, public rights on rivers, and stream restoration. The committee had 10 bills drafted and recommended the following nine bills to the Legislative Council:

    • Bill A – Veterinary technicians’ and veterinary technician specialists’ scope of practice. The bill requires the board of veterinary medicine to promulgate rules establishing certain veterinary medicine tasks that may be delegated to veterinary technicians and veterinary technician specialists and the recommended level of supervision for these tasks. A licensed veterinarian may delegate such tasks after first establishing a veterinarian-client-patient relationship with an animal or group of animals and the owner of the animal or animals. Beginning on January 1, 2026, the bill authorizes a veterinary technician to receive a specialist designation as part of the veterinary technician’s registration, grants title protection for specialists, and prohibits the unauthorized practice as a specialist by a person who does not have a specialist designation.
    • Bill B – Authorizing water management by conservation districts. The bill allows conservancy districts to conserve, develop, utilize, or dispose of water for commercial uses. Authorizes the district’s board of directors to submit and participate in a plan for augmentation for the benefit of water rights and wells within and outside of the boundaries of the district; contract with water users within and outside of the district for the provision of services; exercise certain powers concerning the management, control, delivery, use, and distribution of water in conjunction with a plan for augmentation; establish a water activity enterprise for the purpose of pursuing or continuing water activities; and sell, lease, or otherwise dispose of the use of water or capacity in works by term contracts or by contracts for the perpetual use of the water or works to certain entities. Authorizes a district to enter into long-term contracts with public and private entities and avail itself of aid, assistance, and cooperation from the federal government, the state government, and local governments.
    • Bill C – Public meetings requirement for members of certain state entities. Prior to the consolidation of the Division of Wildlife and the Division of Parks and Recreation and their respective commissions in Senate Bill 11-208, members of the Wildlife Commission were required to hold at least two public meetings per year in their respective geographic districts. This bill renews the public engagement requirement for the members of the Parks and Wildlife Commission and adds the same public engagement requirement for members of the State Agricultural Commission and the Colorado Water Conservation Board. Requires the public engagement meetings be held in person and for status updates on the commission and board members’ compliance with the public engagement requirement to be reported to the chair of each member’s respective commission or board and included in each member’s respective executive department’s annual “SMART Act” presentation to the General Assembly.
    • Bill D – Nonfunctional and artificial turf and invasive plant species. The bill, on and after January 1, 2025, prohibits local governments and unit owners’ associations of common interest communities from allowing the installation, planting, or placement of nonfunctional turf, artificial turf, or an invasive plant species on commercial, institutional, or industrial property or a transportation corridor. Prohibits the Department of Personnel from allowing the installation, planting, or placement of nonfunctional turf, artificial turf, or invasive plant species as part of a project for the construction or renovation of a state facility, which project commences on or after January 1, 2025.
    • Bill E – Veterinary telehealth. The bill allows a licensed veterinarian who has established a veterinarian-client-patient relationship to use telemedicine to provide veterinary services to clients and patients in Colorado with the consent of the client. A licensed veterinarian may also refer a patient to a veterinary specialist, who may provide veterinary services via telemedicine. It defines different types of telehealth tools that can be used in a veterinary practice and extends the veterinarian-client-patient relationship to other licensed veterinarians who share the same physical premises as the veterinarian who established the relationship. Authorizes the Board of Veterinary Medicine to establish rules for the use of telehealth to provide veterinary services.
    • Bill F – Green infrastructure feasibility study and pilot program. The bill requires a feasibility study of the use of green infrastructure (nature-based, watershed-scale water quality management solutions) that are an alternative to traditional gray infrastructure (centralized water treatment facilities) and the use of green financing mechanisms for water quality management. It establishes pilot projects to demonstrate the use of green infrastructure and green financing mechanisms; authorizes the adoption of rules establishing a pre-permit baseline date to assist municipalities and other water providers to pursue pre-permit solutions for compliance with water quality standards; and reporting to the committee on the progress of the feasibility study and any pilot projects and on any legislative and administrative recommendations to promote the use of green infrastructure and green financing mechanisms for water quality management.
    • Bill G – Enforcement of laws concerning noxious weeds. Current law allows the Commissioner of Agriculture to assess civil penalties for violations of state laws related to the prevention of noxious weeds. The bill clarifies that a board of county commissioners may allow for the assessment and collection of fines for violations of local laws enacted to enforce the management of noxious weeds in the county. Creates civil infractions and penalties; allows a county attorney to issue an injunction to prevent an ongoing violation; and allows a board to appoint a district attorney to enforce violations in the event that the county does not have a county attorney or in any other circumstance that the board deems appropriate.
    • Bill H – Raw milk. The bill authorizes a raw milk producer that registers with the Department of Public Health and Environment to engage in direct-to-consumer sales of raw milk in the state if the producer complies with certain labeling, storage, handling, record-keeping, and transportation requirements. The direct-to-consumer sales may take place at the producer’s place of business, at the consumer’s residence, or at a farmers’ market or roadside market. Authorizes the department to adopt rules regarding raw milk intended for sale directly to consumers; inspect and embargo producers’ raw milk and operations; enforce against a violation in court or by imposition of a civil penalty and, if two or more separate violations are committed in a 12-month period, suspend the producer from selling raw milk for 12 months; and prepare and distribute educational materials.
    • Bill I – Expenditure of moneys for the wild horse project. The bill extends, by three years, the time in which money appropriated to implement the wild horse project, created in Senate Bill 23-275, may be expended by the general assembly and the department of law.

    Wildfire Matters Review Committee

    The committee met four times during the 2023 interim.  The committee heard testimony from the Department of Public Safety, Division of Fire Prevention and Control, Northern Colorado Fireshed Collaboration, Department of Natural Resources, Colorado State Forest Service, Colorado Counties, Inc., University Corporation for Atmospheric Research, Colorado Rural Electric Association, Colorado Association of Municipal Utilities, Department of Public Health and Environment & Department of Public Safety, Colorado Forest Health Council, Center for Independence      , Center for People with Disabilities, Special District Association, American Society for the Prevention of Cruelty to Animals, Colorado Division of Insurance, Insurance Institute for Business & Home Safety, Colorado State Fire Chiefs. The committee requested the drafting of nine bills and recommended the following five bills to the Legislative Council for consideration:

    • Bill A – A comprehensive study on biochar, including the use of biochar in wildfire mitigation efforts. The bill directs the Board of Governors of the Colorado State University System to conduct a comprehensive study on biochar, including its use in wildfire mitigation efforts. The board is required to submit a report on the findings of the study to specified committees of the general assembly.
    • Bill B –Strongly encouraging that emergency management plans address the needs of an individual with an animal during an emergency and that local governments make certain information publicly available relating to an individual with an animal during an emergency. The bill encourages a locally defined or interjurisdictional emergency management plan amended or created on or after July 1, 2024, to address the needs of an individual with an animal during an emergency by: including provisions for the evacuation, shelter, and transport of an individual with an animal and that animal; and requiring, to the extent practicable, that at least one shelter established during an emergency is designated to accommodate an individual with an animal. Encourages a city, county, or city and county to make available to the public information for animal emergency preparedness, including: information for creating an evacuation plan and emergency checklist for individuals with animals consistent with recommendations publicly published by the United States Department of Agriculture and the Federal Emergency Management Agency; local organizations that may provide emergency animal assistance; and local emergency shelters, cooling centers, or warming centers, when active, that can accommodate an individual with an animal.
    • Bill C – Assistance for rural communities to apply for wildfire-related grant money. The bill directs the Rural Opportunity Office in the Colorado Office of Economic Development to assist rural communities with identifying and applying for state or federal grants for wildfire mitigation, prevention, response, or risk management efforts. The office is required to prepare a report summarizing its work to assist rural communities with identifying and applying for wildfire-related grants and the report must include information about the rural communities that the office assists and the grants awarded. The office is required to submit the report to the committee or, if the committee no longer exists, to the legislative committees with jurisdiction over natural resources matters.
    • Bill D – Assisting local governments in disaster-related programs, including establishing the slash removal pilot program and providing guidance to local governments on debris removal programs.The bill establishes the slash removal pilot program under the wildfire mitigation incentives for local governments grant program administered by the Colorado State Forest Service. The forest service must establish the policies and procedures for the implementation and the selection of counties for participation in the pilot program. Requires the Division of Homeland Security and Emergency Management in the Department of Public Safety to provide guidance to local governments concerning debris removal issues including: negotiating debris removal program terms with the federal emergency management agency to provide predictability and eliminate duplicate payments for debris removal; developing standard right of entry forms that include opt-in and opt-out provisions and clear insurance assignment of benefit language; establishing right-of-way cleanup procedures, including the removal of private vehicles, for public roadways; considering the removal of hazardous materials and other safety and environmental concerns; and ensuring that local debris removal programs are limited to residential debris removal and do not include commercial debris removal.
    • Bill E – The continuation of public outreach campaigns relating to wildfire risk mitigation in the wildland-urban interface. The bill requires the Colorado State Forest Service to conduct enhanced wildfire awareness month outreach campaigns through 2027 and other outreach efforts through the 2026-27 state fiscal year that are expected to increase awareness of wildfire risk mitigation by residents in the wildland-urban interface.

  • 2023 Interim Committee Recap – Part 2

    This is the second of three articles summarizing this year’s interim committee actions. As mentioned in Part 1 last week, we’re providing summaries of four of 12 committees and their recommended legislation. The Legislative Council met on Wednesday, November 15, to review interim committee legislation proposals. Click here to listen to the Legislative Council meeting.

    Legislative Oversight Committee Concerning the Treatment of Persons with Behavioral Health Disorders in the Criminal and Juvenile Justice Systems

    The committee met five times during the 2023 interim. It heard presentations from multiple stakeholders, behavioral and mental health advocates, and representatives from state executive departments concerning issues facing persons with behavioral health disorders who have been in contact, in one form or another, with the criminal or juvenile justice systems. The committee requested seven bills to be drafted and recommended the following five bills to the Legislative Council for consideration:

    • Bill A – Concerning persons detained in jail who are held on an emergency commitment. The bill prohibits a law enforcement officer or emergency officer or emergency service patrol officer who takes a person into protective custody from detaining a person in jail. Requires each local law enforcement agency that has taken a person into protective custody to provide an annual report to the Behavioral Health Administration that includes disaggregated and nonidentifying information concerning persons who were taken into protective custody. Requires each approved treatment facility or emergency medical services facility that detains or holds a person on an emergency commitment to provide a quarterly report to the Behavioral Health Administration.
    • Bill B – Concerning adult competency to stand trial. The bill reforms and clarifies the criminal competency to proceed process. Provides necessary parties with access to information related to the defendant’s claim of incompetency to proceed. Requires the Department of Human Services to search prior competency evaluations in its possession when the court orders a competency evaluation or the court finds the defendant incompetent to proceed and provide any evaluations to the court. Adds to the information that is included in a competency report. Delineates a court’s options when it finds that a defendant is incompetent to proceed. Directs when competency services may be provided on an outpatient basis. Sets forth the circumstances when a court has to dismiss the defendant’s case based on the highest level of charge against the defendant and how long the defendant has been waiting for restoration services.
    • Bill C – Concerning ongoing funding for the Colorado 911 resource center, and in connection therewith, requiring reporting to ensure that the funding is being expended efficiently and effectively, and making an appropriation.The bill requires the General Assembly to annually appropriate $250,000 from the general fund to the Department of Regulatory Agencies for use by the Public Utilities Commission to fund the operations of the Colorado 911 Resource Center. The center is required to provide a quarterly report outlining the use of the funding provided, and the commission is required to include an accounting of the expenditure and uses of this funding in an annual report that current law requires it to make to the members of the general assembly. The center is required to survey 911 professionals and local 911 emergency call authorities and summarize results in each quarterly report to the commission.
    • Bill D – Concerning expanding a program to continue responding to youth behavioral health crises.Under current law, the Department of Human Services offers statewide access to crisis system services for children and youth. The bill expands the services provided through the creation of the crisis resolution team program. The Behavioral Health Administration shall administer the program to provide community-based services to de-escalate and stabilize children or youth experiencing high-acuity behavioral health crises. The administration shall contract with crisis resolution team providers to provide community-based de-escalation and stabilization services to children or youth. The administration shall submit to the General Assembly a feasibility study to determine whether the program can be further expanded.
    • Bill E – Concerning considering factors related to the capability to participate in the judicial process in determining whether to place a person into a pretrial diversion program.The bill requires a district attorney’s office, or the office’s designee, to consider the use of a juvenile diversion program to prevent a juvenile who demonstrates behaviors or symptoms consistent with an intellectual and developmental disability, a mental or behavioral health issue, or a lack of mental capacity from further involvement in formal delinquency proceedings. Adds behavioral health services and services for juveniles with developmental disabilities to the types of services a juvenile may need and adds behavioral health treatment providers and providers who offer services to juveniles with developmental disabilities to the list of professionals who may provide the appropriate diversion services. If a defendant’s competency is raised or a defendant is found incompetent to proceed, the bill allows the defendant to enter into a diversion agreement if the court finds that the defendant has the ability to participate and is advised of the potential consequences of failure to comply.

    The Opioid and Other Substance Use Disorders Study Committee

    The committee met six times during the 2023 interim. It heard presentations from multiple stakeholders, state agencies, behavioral and mental health advocates, and other interested parties concerning the issues facing individuals with substance use disorders. The committee requested five bills to be drafted and recommended the following four bills to the Legislative Council for consideration:

    • Bill A – The Prevention of Substance Use Disorders. The bill modifies the prescription drug monitoring program by exempting veterinarians from complying with specific aspects of the program, adding reporting requirements for gabapentin, allowing the medical director of a medical practice or hospital to appoint designees to query the program, allowing the Department of Health Care Policy and Financing to access the program, and updating current language in the laws relating to the program by using more modern terminology. Creates the substance use disorder prevention gap grant program; permits a multidisciplinary and multiagency drug overdose fatality review team to request and receive information from certain specified persons and entities as necessary; and requires the substance use screening, brief intervention, and referral to treatment grant program to implement a statewide adolescent program and referral practice for pediatricians and professionals in pediatric settings. Modifies the statewide perinatal substance use data linkage project and authorizes the University of Colorado School of Medicine to conduct a statewide opioid use disorder prevalence data linkage project.
    • Bill B – Treatment for Substance Use Disorders. The bill prohibits a carrier that provides coverage under a health benefit plan for a drug used to treat a substance use disorder from requiring prior authorization for the drug based solely on the dosage amount. Requires an insurance carrier and the medical assistance program to reimburse a licensed pharmacist prescribing or administering medication-assisted treatment pursuant to a collaborative pharmacy practice agreement at a rate equal to the reimbursement rate for other providers. Amends the practice of pharmacy to include prescriptive authority for any FDA-approved product or medication for opioid use disorder in accordance with federal law and requires that a protocol for pharmacists to prescribe, dispense, and administer medication-assisted treatment be developed. Authorizes certain licensed clinical social workers and licensed professional counselors to provide clinical supervision to individuals seeking certification as addiction technicians and addiction specialists and authorizes rules to be adopted relating to this clinical supervision. Establishes the behavioral health diversion pilot program and expands the medication-assisted treatment expansion pilot program. Requires the Department of Health Care Policy and Financing to seek federal authorization to provide certain screenings for physical and behavioral health needs to persons up to 90 days prior to release from jail, a juvenile institutional facility, or a Department of Corrections facility. Requires the Department of Health Care Policy and Financing to seek federal authorization to provide partial hospitalization for substance use disorder treatment, adds substance use disorder treatment to the list of health-care or mental health-care services that are required to be reimbursed at the same rate for telemedicine as in-person services, and places additional requirements on managed care entities and the Behavioral Health Administration.
    • Bill C – Substance use Disorders Harm Reduction. The bill excludes injuries involving the possession of drugs or drug paraphernalia from a physician’s mandatory reporting requirements. Clarifies that the civil and criminal immunity that protects a person who acts in good faith to furnish or administer an opioid antagonist also protects a person who distributes the opioid antagonist. Adds an exemption to the prohibition on possessing drug paraphernalia for possession of drug paraphernalia that a person received from an approved syringe exchange program or a program carried out by a harm reduction organization while the person was participating in the program. Specifies that money appropriated to the Department of Public Health and Environment to purchase non-laboratory synthetic opiate detection tests may also be used to purchase other drug testing equipment. Authorizes an organization operating a clean syringe exchange program to provide drug testing services through the program. Updates the term “opiate antagonist” to “opioid antagonist”.
    • Bill D – Substance Use Disorders Recovery. The bill implements a voluntary designation process for recovery-friendly workplaces. Allows a school district to include in the annual pupil count a student who has transferred to a recovery high school before the pupil count date. Allows a recovery community organization that receives a grant through the recovery support services grant program to use the money to provide guidance to individuals on the many pathways for recovery. Declares that recovery residences, sober living facilities, and sober homes are a residential use of land for zoning purposes. Places restrictions on where liquor-licensed drugstores and fermented malt beverage and wine retailers may display alcohol beverages on the stores’ licensed premises.

    Pension Review Commission and Pension Review Subcommittee

    The commission met twice during the 2023 interim. It heard presentations from the Fire and Police Pension Association and the Public Employees’ Retirement Association. In addition, the commission heard proposals for legislation from its own Pension Review Subcommittee. The subcommittee met three times during the 2023 interim to: (1) Hear presentations from PERA; (2) Discuss proposed legislation and questions to be submitted to PERA; (3) Hear from PERA regarding answers to their submitted questions; (4) Discuss inflation relief for PERA retirees; and (5) Discuss its annual reports to the General Assembly and the citizens of Colorado. The commission requested that six bills be drafted and recommended the four following bills to the Legislative Council for introduction:

    • Bill A – Additional PERA Service Retirees for Schools. With limited exceptions, current law limits the number of service retirees that a state college or university or an employer in the school or Denver Public Schools division of the Public Employees’ Retirement Association can hire, without a reduction in the service retirees’ benefits, to 10 service retirees when an employer determines there is a critical shortage of qualified candidates. The bill allows an employer to hire such service retirees when the employer determines there is a need. Authorizes an employer in the school or Denver Public Schools division with a student enrollment above 10,000 to hire, without a reduction in service retirees’ benefits, an additional service retiree for each 1,000 students enrolled above 10,000. An employer with 10,000 students or less will continue to be allowed to hire 10 service retirees. The bill requires an employer in the school or Denver Public Schools division to provide PERA with a list of all employed service retirees by September 1 of an applicable calendar year.
    • Bill B – PERA Retiree Refundable Income Tax Credit. The bill creates a refundable income tax credit that is available for income tax years commencing on or after January 1, 2024, but prior to January 1, 2026, for a qualifying public employees’ retirement association retiree, which means a full-time Colorado resident individual who is 65 years of age or older at the end of the 2024 or 2025 income tax year; and has an annual gross income of no more than $38,000 as a single filer or $76,000 as a joint filer.
    • Bill C – Fire and Police Pension Law Technical Corrections. House Bill 22-1034 merged three retirement plans administered by the Fire and Police Pension Association, the statewide defined benefit plan, the statewide hybrid plan, and the social security supplemental plan into a single statewide retirement plan. House Bill 22-1034 accomplished the merger in part by repealing several statutes and relocating some of the substantive provisions of those statutes into new statutes. In doing so, certain statutory cross references were not properly updated to reflect the repeals and relocations. The bill updates the obsolete statutory cross references. Updates the definition of “member” in the new hire pension plan statute to clarify that a portion of the definition applies only for purposes of the statewide money purchase plan. Repeals an inapplicable portion of the definition of “member” in the statewide retirement plan statute.
    • Bill D – State Contribution to FPPA Death & Disability Fund. For members of the Fire and Police Pension Association hired before January 1, 1997, death and disability benefits are paid from state money in the statewide death and disability trust fund. State funding for this benefit discontinued in 1997 based on an assumption that the last payment had fully funded all the benefits to be paid. An actuarial analysis from 2021 determined that the payment in 1997 was not sufficient to cover the benefit obligations associated with members hired prior to January 1, 1997. The 2021 actuarial analysis indicated a shortfall of $33.191 million. The state made payments to cover a portion of this shortfall. Based on the 2023 actuarial calculation, the remaining shortfall is now $27.39 million. The bill requires the state treasurer to pay a total of $27.39 million, in three equal payments of $9.13 million, to be made on July 1, 2024, July 1, 2025, and July 1, 2026, to the association for it to deposit into the trust fund so that there will be sufficient money to pay future death and disability benefits to these members.

    Recidivism Interim Study Committee

    The committee met three times during the 2023 interim to review Colorado state agency and department definitions of recidivism; examine other state and academic approaches to defining recidivism; review means other than recidivism that can be used to measure program success; and evaluate aligning agency and department recidivism definitions. It heard presentations from the National Conference of State Legislatures, the Treatment of Persons with Behavioral Health Disorders in the Criminal and Juvenile Justice System Task Force, various state departments, the state board of parole, the state public defender, the judicial branch, and experts in the field of criminal justice and recidivism. The committee requested three bills be drafted and recommended each of the three drafts to the Legislative Council for its consideration.

    • Bill A – Creating a Working Group to Develop a Definition of Recidivism. The bill requires the Division of Criminal Justice in the Department of Public Safety to convene a working group to develop a definition of “recidivism” to be used by each state entity that collects data or reports on recidivism in any report issued by the entity. The working group shall develop a definition of “recidivism” no later than January 15, 2025, and each state entity that collects data or reports on recidivism in any report issued by the entity shall begin using the working group’s definition on July 1, 2025.
    • Bill B – A Study of How to Measure the Effectiveness of the Criminal Justice System Using Metrics Other Than Recidivism. The bill creates the alternative metrics to measure criminal justice system performance working group to study metrics and methods, other than measuring recidivism, to supplement the current measure of recidivism; measure risk-reduction outcomes; comprehensively measure successful outcomes that consider various aspects of life, including employment, housing, education, mental health, personal well-being, social supports, and civic and community engagement; and more effectively measure criminal justice system performance. The working group shall submit a report to the House of Representatives Health and Insurance and Judiciary committees and the Senate Health and Human Services and Judiciary committees on or before July 1, 2025.
    • Bill C – A Study to Examine How Individuals Proceed Through the Criminal and Juvenile Justice Systems. The bill requires the Division of Criminal Justice in the Department of Public Safety to conduct a study to examine how individuals proceed through the various stages of criminal and juvenile justice proceedings, including sentences and alternative sentencing programs. The division shall solicit proposals for an entity to assist with the study. The bill requires the division to submit a report of its findings to the Joint Budget Committee and Judiciary committees of the House of Representatives and the Senate by June 30, 2025.

    Next week in Part 3, the final part of this series, will summarize the actions of four additional committees that met during this interim.